Harwood v. Marshall

Tuck, J., delivered the opinion of this court. Four prominent questions arise on the present appeal: — ■ First, whether the writ of mandamus is the appropriate remedy? Second, whether the appellee has shown a right to he admitted to the office of Librarian? Third, whether the order appealed from is for an alternative or peremptory mandamus$ and Fourth, whether, in case of a reversal, a procedendo can be issued? 1st. As to the remedy. By the act of 1806, ch. 90, sec. 9, the county courts were clothed with the powers of the general court in cases of mandamus. As the circuit courts have the jurisdiction of the county courts, their powers, in these cases, are also to be measured by those of the general court, which we are told, in Runkel vs. Winemiller, 4 H. & McH., 448, were similar to the jurisdiction exercised by the court of King’s Bench; and by which, it was said, the general court might, and of right ought, for the sake of justice, to interpose in a summary way, to supply a remedy, where, for the want of a specific one, there would otherwise be a failure of justice.” The cases on this branch of the law are very numerous. — 98 — The force of the maxim, “ est boni judiéis ampliare jurisdictionem," seems to have been almost expended in the application of this remedy, to meet the emergency of new cases. Tapping, 3. Com. Dig., Title, Mandamus. Without citing many of the decisions, we content ourselves with referring to what Lord Mansfield said, in the case of Rex vs. Barker, 3 Burr., 1266, as a precise and explicit statement of the principle governing the use of this writ according to the earlier authorities, and which has been generally, if not universally, recognized since his time: “Whenever there is a right to execute an office, perform a service, or exercise a franchise, (more especially if it be in a matter of public concern or attended with profit,) and a person is kept out of possession, or dispossessed of such right, and has no other specific remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order and good government.” — “It ought to be used upon all occasions where the law has established no specific remedy, and where, in justice and good government, there ought to be one.” This view of the office of the writ of mandamus was adopted in the case of Runkel vs. Winemiller, 4 H. & McH., 448, and in Marbury vs. Madison, 1 Crunch, 168. See also 3 Bl. Com., 110. Tapping on Mandamus, 172, 173. It is said, however, that the writ is not demandable in the present instance, because the right to the office may be otherwise tried. It is clear that it will not lie if there be another legal remedy, but that remedy must be specific and adequate to the object in view, “framed to effect directly the desired end.” 3 Halst., 206. It must afford “complete satisfaction, equivalent to a specific relief.” 2 Doug., 525. We are told, in 1 Ch. Gen’l Pr., 789, on the authority of Andoley vs. Joye, Poph., 176, that the writ of mandamus may be compared to a bill in equity for a specific performance. Evans' Pr., 404. In Regents, &c., vs. Williams, 9 G. & J., 365, the rights of the actual parties to the controversy were determined in an action for money had and received, but if that course had been pursued by this appellee, the judgment would not have placed — 99 — him in possession of the office. His ultimate success might have depended on its voluntary surrender by the appellant. In Marbury vs. Madison, it was held, that the action of detinue was not a specific remedy, because the judgment would be for the thing itself, (the commission,) or its value, whereas the party was entitled to the office or to nothing, and the commission was necessary to the enjoyment of the office. And in Kendall vs. United States, the court said, as a reason for sustaining the mandamus, and in reply to the argument that the post-master might be sued, that private actions at law seldom afforded adequate relief in these cases. Quo warranto, or an information of that nature, has been resorted to in some cases, as preliminary to the mandamus, but we do not think that remedy necessary in this case. It might prove very inadequate, by reason of the déla)'. We must bear in mind that the claimant seeks not only the removal of the incumbent, but the possession of the office. No form of proceeding that will give him less than he asks and has a right to claim, can be said to furnish specific, adequate relief. Under the quo warranto information the judgment might amove the occupant but would not install the claimant. He might still find it necessary to resort to other process against some other person or officer who might deem it his duty to keep him out, and thus his whole term might expire in vain efforts to obtain that to which the constitution and laws may have declared him to be entitled. In Strong's case, 20 Pick., 497, involving this very point, the court held, that the remedy by action at law, or quo warranto, would be very imperfect and partial, and that the evil could be reached only by mandamus. And in Dew's case, 3 Hen. & Munf., 23, Tucker, J., in answer to the very objection now urged by the appellant, after quoting 3 Bl. Com., 110, to show that this writ may be issued in some cases where the law gives another more tedious mode of redress, as in the case of admission or restitution to an office, added: “ This is the very case before us, and although possibly the injured party may have another remedy, I think there is no other so well adapted to the' nature of the case as that of mandamus." In the same case, Roane, J., said, it was im — 100 — portant that a speedy decision should be given, and, as conducive to that end, the most direct remedy should be pursued, which is consistent with justice and the policy of the laws. And, as to the quo warranto proceeding, he added, that “it was not in itself a specific remedy j it only paved the way for the introduction of a specific remedy, by producing a judgment of ouster against the person in actual possession.” We consider this a very reasonable and correct view of the law of mandamus, as applicable to the character and tenure of the office of Librarian, and that the writ will lie unless there be something in the only remaining point urged on this part of the case, to wit, that the writ is never granted where the office is filled by a person claiming title. We have carefully examined the authorities cited, and find that this is not, by any means, recognized as a general proposition, either in England or in this country. There are decisions on either side. The principle has been applied, for the most part, in those cases where the writ was invoked against corporations, bishops, or others, with whom resided tíre power of appointment, or induction, or admission, and where some other person, not party to the writ, was in possession under color of tide. In these cases it would be manifesdy against the first principles of justice to direct the amotion of the incumbent, when, by another form of proceeding — quo warranto information — quare impedit, Sfc. — he might have an opportunity of being heard in defence of his rights. This is certainly the ground on which the court proceeded in the cases of The People vs. Mayor, &c., of N. Y., 3 Johns. Cases, 79, and The People vs. Forquer, Breese, 68. This reason is not given in all the cases, but it does appear that in some of them, American as well as English, the person in office was held to be a necessary party to the mandamus, which shows that, according to these decisions, the writ may go where the person to be affected can be made a party, and die doctrine, that the writ will not be granted where the tide is disputed, must, we think, be confined to those cases in which the contest is made by another person in and claiming the office, yet is not a party to die writ. The authority of The People vs. Mayor, &c., of — 101 — N. Y., 3 Johns. Cases, was not recognized, but disregarded, in 20 Pick., 496, where it is said, “ notwithstanding the respectability and weight of this and the other authorities cited, there are certainly very many the other way.” In Pew's case, also, (3 H. & Munf., 1,) the question is discussed by Judge Roane, and, as we think, properly disposed of. In the present case the process is asked against the only person who is interested in contesting the claimant’s right. The incumbent’s original title is not questioned in this proceeding, hut it is contended that he has been superceded, under the constitution, by the election and qualification of Marshall, so that if Marshall is entitled the appellant remains in wrongfully. His right ceases the moment Marshall’s becomes perfect, the completion of title in one per se terminating that of the other. We have decided, (5 Md. Rep., 423,) that Harwood’s term would expire on the 23rd April 1855, though his right would continue until the qualification of Marshall. If this has occurred, does it need a quo warranto, or an information of that nature, to ascertain by what authority the present incumbent is in office and claims to exercise its functions ? If the fact be as averred by Marshall, the constitution declares that Harwood has no right to hold the office, and therefore “ no utility can result from a trial on quo warranto information.” 3 Hen. & Munf., 37. 2nd. As to the appellee’s title to the office. We will consider the several objections to the writ, made on the part of the appellant, under this question. We are of opinion that the Governor, having been authorized to administer the oaths of office, may certify the fact. It may be observed that the certificates heretofore issued from the executive department, of the appointment and qualification of officers, merely assert the fact, without showing the quo modo. County clerks have always certified the appointment and qualification of justices of the peace and other officers, by merely declaring the fact, without reference to the evidence of qualification in their offices. Are we to presume that the law denies to the Governor, who is charged with the execution of the laws, and presumed to know what they enjoin, less capacity to declare — 102 — what he has himself done in the matter of qualifying officers under the constitution? But, if the Governor cannot certify, how is the fact to be ascertained? It is answered, on the part of the appellant, that the qualification is required, by the act of 1852, ch. 172, to be made matter of record, and that a certified copy must be produced, under the hand of the Secretary of State and the great seal. The only authority given to the Secretary, by this act of Assembly, to certify, relates to a class of officers named in the fourth section, which does not embrace the Librarian. It is not included in his duty to preserve a record of the oaths and signatures of the officers. Besides, the law has no where made such certified copies evidence any more than the mere certificate of the Governor. If one be rejected there would be no reason for receiving the other, and parties might be driven to the necessity of producing the original book in all cases where the legality of the qualification might be called in question. In any view of the point the Governor must sign his name. The Secretary has no control over the great seal. The act of 1853, ch. 131, places it in his custody, but under the control of the Governor, who alone can authorize its use, and is required to verify, by his signature, every document to which it may be affixed. See also the act of 1853, ch. 448. The act of 1852, ch. 172, in so far as it requires a book to be kept, is merely directory, to preserve proof of the qualification of public officers. If an officer qualifies according to the constitution and laws, and the book should not be preserved, we have no idea that such omission on the part of the Secretary would defeat his right to the office, or render his acts invalid, merely because a copy of his qualification could not be taken from the record. There is no need for the form of the oath being set out in words in the certificate, to enable the court to see that the proper oath has been taken. The forms are prescribed by the constitution, and when the Governor’s certificate declares that the officer has qualified, or has taken and subscribed the oaths prescribed by the constitution and laws, it must be intended that the proper oaths were administered and subscribed. The instances of attachment and others, referred to in the argument, do not apply, — 103 — because in these cases the proceeding is special, and the acts of Assembly must be strictly pursued. Next, as to the sufficiency of the certificate. The constitution expressly declares that the officer shall subscribe the oath. Taking and subscribing the oath constitute the qualification, as far as the case is governed by the fourth section of the first article. A majority of the court is of opinion that this certificate is not sufficient evidence of the appellee’s qualification, because it does not show in terms that the oath was subscribed, and there is no expression from which an intendment to that effect can be made. In reference to the limitation of thirty days, in the fifth section of the act of 1852, ch. 172, within which officers are required to qualify, we may remark that it does not apply to the officers mentioned in the third section. Within what time such officers are required to qualify we need not now inquire, as there is nothing before us to show that the appellee has forfeited his office by any such means, and we cannot presume that he has done so. On the contrary, it is more reasonable to suppose that a person who has sought and obtained an appointment, with emoluments, has done ah the law makes necessary to complete his right to the office and its profits. Nor do we think that the election of Mr. Boyle, from anything in this record, has superceded the claims of Marshall. The Legislature were not to presume that Marshall was not actually in office, or had lost it by any act or omission. As they had power to appoint his successor in advance of the expiration of his term, (5 Md. Rep., 423,) we must suppose, until the contrary appears, that he was appointed according to the constitution for a term of two years, to commence at the end of Marshall’s service. We are next to inquire whether Marshall’s bond has been properly approved. It is objected, on the part of the appellant, that the bond must be approved by a joint committee on the Library of that Legislature by which the party may be elected. We are of the opinion that a joint committee is not only unnecessary, but that such approval would be against the very terms of the act of 1847, ch. 53. The bond of the Librarian — 104 — originally was approved by the Executive. (Act of 1826, ch. 53, sec. 3.) By that law a joint committee was authorized to be appointed, for the purpose of making disbursements. That committee never had anything to do with the Librarian’s bond. But, by the act of 1847, ch. 53, the mode of appointment was changed, and also the manner of approving the bond. The appointment was required to be by concurrent vote of the two houses of the Legislature, and, in case of vacancy during the recess, by the Governor — the bond in the latter case to be approved by the Governor, and in the former by “ the committees of the said senate and house on the Library. ’ ’ If, as contended in argument, the two houses of the Legislature had no authority, except by a law, to appoint separate committees on the Library, thus repealing the act of 1826, the restriction would only be in pursuance of the sixth section of that act, which, as we have seen, required a joint committee for the purpose of disbursements, and perhaps separate committees would have no power to disburse the Library funds. It was certainly competent for the Legislature, by a law, as they have done, to indicate any other mode of approving the bond. It might, with as much reason, be said that the Governor could not approve the bond during the recess, because the sixth section of the act of 1826, ch. 53, authorized the appointment of a joint committee on the Library. So far as the approval is concerned, the act of 1847 repeals the third section of that of 1826, being repugnant thereto. For several years before 1847, and at that very session, each house appointed its own committee on the Library. In view of the existence of such committees the act of 1847 was passed, conferring on them, as separate committees, the power of approving the bond. And this we think was consistent with the mode of appointment. For, as that was by concurrent vote, it may have been the design of the framers of the law to give to each committee a separate and distinct vote on the sufficiency of the bond, in order that, as each house was a check upon the other in making the appointment, so the committee of each might have the same weight in approving the bond, and not be overruled by the greater number of the other. Were the committees of the session of 1856 empowered to — 105 — approve the bond of Marshall, appointed by the Legislature of 1854, is the next inquiry? He was elected on the 7th March 1854, and the Legislature adjourned on the 10th of that month. We have no decision or act of Assembly to govern the question, except that of 1847, ch. 53. We must, in the absence of express language in the act directly controlling the point, consider the object of the laws in reference to the Library, and give to the act that interpretation which shall appear most conducive to the public interest, to subserve which alone any bond at all was required. It is insisted that the word “said,” before “senate and house,” shows that the committees of the two houses of the legislative body making the appointment were intended. If the word be regarded at all, it may as well be said to refer to the previous words, “of this State,” as indicating that, as the election was to be made by the “ Senate and House of Delegates of this State,” the bond should be approved by committees of the senate and house, of the same State. ' But, in truth, the word was uselessly employed, and in its present context has no meaning whatever. Like many other acts of Assembly the construction of this can be arrived at, according to the object and purpose of the law, without confining ourselves by the strict interpretation placed upon it by the appellant. As the bond was required, not for the benefit of the Librarian, or of any particular Legislature, but for the security of the State, we must so construe that act as best to subserve that purpose. Now, suppose that the Governor were called upon to make an appointment in the recess of the Legislature, and were to send a commission to the appointee, and then, before the party had qualified, the office of Governor were to become vacant, would not his successor have authority to administer the oaths and receive the bond? There cannot be a doubt of this. Then, in what does the case differ from the one before us, except that the Legislature is the appointing power, and its session expired, and with it the power of their committees to approve the bond, before the party holding the evidence, of his election could prepare and offer his bond for acceptance ? Again, suppose Marshall had filed a bond before the termination of the — 106 — session at which he was elected; that that bond had been approved by the committees; that he had gone into office, and, at the late session, it had been discovered that his bond was informal, or that his sureties had become insolvents, is it to be said that in such a case the State has no redress; that the incumbent might hold the office, without any security to the State, and that, though willing to renew his bond, he could not do so, because the committees of the Legislature which made the election are functi officio ? Yet that is the result of the construction now placed on this act, on the part of the appellant, because, in the case supposed, Marshall having once qualified and been admitted, and done nothing to forfeit his office, he could not be amoved on account of the insolvency of his bondsmen. Looking to the intent and policy of the law in requiring a bond, and there being nothing in the act of 1847, ch. 53, requiring a different construction, it is the opinion of a majority of ,the court that the bond was properly approved. 3rd. As to the character and effect of the order from which the appeal is taken. It is the opinion of a majority of the court, that, whatever may be the practice in cases of mandamus, as contended by the appellee’s counsel, requiring the writ to issue in the first instance in the alternative form, according to which, as he insists, no other could have been obtained by his client under this order, the words of the order itself are too plain to admit of being controlled by such practice. It directs the mandamus to be issued for the delivery of the office to the appellee, without any qualification or condition whatever, and, being in terms final in its character, in pursuance of which a peremptory writ might have issued, was the proper subject of appeal. 4th. In consequence of the form of the Governor’s certificate, and the absolute effect of the order, it must be reversed, and this view of these points in the case makes it necessary for us to decide whether the record can be remanded. We understand the counsel for the appellant to contend that a procedendo cannot be issued, because this must be treated as a criminal proceeding, and the power cannot be exercised — 107 — in such instances. That it can be done in prosecutions for offences of the gravest character, where the State is the plaintiff in error, is shown by the case of State vs. Buchanan, 5 H. & J., 368, in which the point was expressly made and decided; and several cases have occurred since. State vs. Cassel, 2 H. & G., 407. Dent, 3 G. & J., 8. Dowell, 3 G. & J., 310. Evans, 7 G. & J., 290. Price, 12 G. & J., 260. Sutton, 4 Gill, 494. Fearson, 2 Md., 310. Phelps, Ante, 21. It has rarely been allowed where the accused has sued out the writ of error, for the reason, as we suppose, that it would have been of no use to remand the record, inasmuch as no new trial could have been had. These cases have generally come up on demurrer to the indictment, or motion in arrest of judgment, founded on defects that could not be cured, and the judgment of reversal was necessarily final in the particular case. Such were the cases of Bode vs. State, 7 Gill, 326. Capritz, 1 Md., 569. Black, 2 Md., 376. Raab, 7 Md., 483. But in Root vs. State, 10 G. & J., 374, the power to order the writ was recognized, and it was not issued only because no new proceedings could have been instituted in the county in which the case had been tried. So in Cochrane vs. State, 6 Md., 400, where the judgment here was not final, the writ was allowed. We do not, find in the acts of Assembly any express warrant for a procedendo in criminal causes, but suppose it may have been granted in Buchanan’s case, because it was proper to promote justice, under a liberal construction of the acts of Assembly in relation to that writ. Where the judgment here is not final, necessarily, this reason applies as well to cases where the accused is plaintiff in error, as where he is defendant. According to Evans’ Pr., 446, the writ will be issued whenever, on the reversal of a judgment, it is proper to attain the ends of justice, and the author gives instances of the practice not expressly provided for by the acts of Assembly. But we think that the words of the tenth section of the act of 1826, ch. 200, embrace cases of this kind. It is by no means certain that this is a criminal proceeding, even conceding, which we do not, that the act of Assembly last mentioned does not embrace State causes. True, it is a State writ, but — 108 — the controversy is practically a case inter partes, who alone are interested, except so far as the public may be concerned in having the office filled. “It is substantially a civil remedy for the subject, and the King’s name is only nominally used. The object of the writ is, not to supersede legal remedies, but only to supply the defect of them.” 3 Steph. N. P., 2291. It was formerly a subject of much discussion whether a quo warranto information was not so far a criminal proceeding as to prevent a new trial, where the judgment was in favor of the defendant j but since it was held, in King vs. Francis, 2 Term, 484, that it was to be considered merely in the nature of a civil proceeding, it has been the practice to grant new trials, as well where the defendant as where the crown succeeded at the first trial. This being the law in cases of quo warranto, there is quite as much reason for treating writs of mandamus as merely civil remedies. In this view of the point the case is clearly within the tenth section of the act of 1826, ch. 200, as expounded in Kennerly vs. Wilson, 2 Md., 245, and that of 1845, ch. 7, giving the right of appeal in cases of mandamus. This last act provides, that they shall be subject to the “same restrictions and limitations which exist in taking and trying appeals in other cases,” and, as we think, subjects the parties to a procedendo in all cases where the court may think the purposes of justice require further proceedings on the application for the writ. Order reversed and procedendo awarded.